www.elsblog.org - Bringing Data and Methods to Our Legal Madness

24 May 2006

On the Tax Prof Blog, Paul Caron reports on the recent work of his colleague, Adam Steinman, who documented the most heavily cited court cases in his discussion of Celotex (a Civ Pro I standby). Paul's blog entry includes a table of the Top 10. Seeing no tax cases, Paul generated his own Tax Top 10, which he also posts.

All this reminds me of the fascinating network analysis of court cases by Tom Smith of the University of San Diego Law School. (See, e.g, The Web of Law.) There is a lot of work to be done in this area. The digitization of the data + adequate computer power are relatively new phenomena.

23 May 2006

I earlier posted about agency guidelines in reponse to the Federal Data Quality Act. Lauren Willis (Loyola-LA) wrote a letter in an attempt to use the OMB Guidelines to critique an Office of Comptroller of the Currency proposed regulation change
that relied heavily on an OCC Working Paper that used a data sample to come to the conclusion that subprime home loans are priced
efficiently. See here.
Though it seems there was no response to the Willis critique. Apparently, in publishing the final regs, the OCC included statements about how it was complying
with OMB requirements, but failed to mention the OMB Guidelines for
Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of
Information Disseminated by Federal Agencies.

It is my great pleasure to be a guest blogger on the ELS website. Kudos and thanks to Jason and his colleagues for establishing this terrific site, chock full as it is with interesting information for all of us interested in ELS.

In this first entry, I thought I'd address a question that may be of interest to many readers about the Administrative Office Database, now archived in computer readable format by the Federal Judicial Center and available through the ICPSR. Ted Eisenberg has noted that some have called the AO database "'by far the most prominent' database used by legal researchers for statistical analysis of case outcomes" (78 Notre Dame L.R. at 1458). One frustrating thing about the AO database, as we all know, is that it has the judge ID's expurged prior to its distribution to the public. My understanding of this situation, learned during my stint at the FJC, is that the decision to release the data without the judge identification information was initially rendered by Chief Justice Rehnquist in consultation with the AO. The concern was that statistical analysis of individual judges' decisions would threaten judicial independence and possibly even the safety of judges as well. Nevertheless, this decision led to the paradoxical situation in which the NSF ultimately spent hundreds of thousands of dollars to fund the Songer Database (the U.S. Courts of Appeals Database)--although no similarly publicly funded database for the District Courts has yet to be developed. Although the Songer Database includes information not available in the AO data, it would have been far simpler for Don to have had access to the judge codes as an important starting point in the development of his database.

At this point, it seems the time might be right for the scholarly community to petition the federal judiciary to release the judge codes based on several prevailing factors. First, we have a new Chief Justice who may be more willing to consider such a request. Second, sophisticated computer programs now exist to gather vast amounts of information directly from Westlaw, including the identity of judges rendering the decisions. These computer programs have been used, for example, to produce complex network analyses of precedent based on thousands of cases in the Westlaw database (Jim Spriggs and his colleagues have initiated such analyses, for example). Third, the Songer data exists in the public domain with considerable information about the decisional patterns of individual judges readily available. Fourth, the ludicrous situation in which the federal government gives with one hand while taking away with the other--at a high cost to taxpayers--might be a compelling argument in support of such a request. Finally, from a scholarly viewpoint, analyses of case level decision making without controls for ideology make little sense given the state of our knowledge about attitudinal factors in judicial decision making. Moreover, the AO data includes information about unpublished opinions--presently not available in the Songer database.

One problem, of course, is that the federal judiciary is exempt from FOIA. Thus, the only way to obtain the information is for us to petition the AO to release it. The Executive Committee of the APSA Law and Courts Section might be a place to start in the development of such a request, but I welcome suggestions from readers, who might have other insights into this issue.

A recent thread on the SPSS listserv begins with: "One continuing problem everywhere I've worked is trying to go back to an analysis someone else did 2 years ago and reconstructing what they did, especially regarding data cleaning and other changes to the data files." This is a real problem with immediate, important, and practical implications (e.g., replication). The SPSS thread has already generated a few tips (some more useful than others) that I pass along (in summarized form).

22 May 2006

HarperCollins and Steven Levitt were served on May 2, 2006
and May 5, 2006, respectively. HarperCollins’ response was originally due today;
Levitt’s response was originally due this Thursday. However, the court granted
the defendants’ motion for an extension to Monday, June 5th, and neither defendant filed a
response today.

The article highlights the empirical research of Eli Wald (Denver Law), who is
doing some interesting work on the rise of Jewish lawyers within the New York corporate
bar. Wald's research includes interviews with numerous Jewish lawyers who
joined large law firms between 1946 and 1962, essentially breaking a de
facto ethnic barrier. Eventually the taboo of hiring Jewish lawyers
exploded in the 1970's when predominantly Jewish law firms, such as Skadden
Arps, Weil Gotshal, Paul Weiss, Fried Frank, Kaye Scholer, and Wachtell Lipton,
became the counsel of choice for corporations seeking innovative solutions to
old problems. (For an eye-opening contemporaneous account of the
pre-1970s discrimination, see Notes and Comments, The
Jewish Law Student and New York City Jobs -- Discriminatory Effects in Law Firm
Hiring Practices [Hein Online], 73 Yale L. J. 625 (1964)).

According to Wald, the bottom-line is that the Jewish success story reflects
a unique historical occurrence that is unlikely to be duplicated by female or
minority lawyers. Bruce MacEwen, who writes the Adam Smith, Esq. blog on law
firm economics, has a very informative and insightful analysis of Wald's findings. Both the NYLJ story and MacEwen's commentary are
recommended reading.

A new article by Paul M. Janicke & LiLan Ren, Who Wins Patent Infringement Cases?, 34
AIPLA Q.J. 1 (2006), offers some data on patent infringement cases in the
Federal Circuit. While there is no abstract, the following text from the
introduction provides the gist of the article:

Numerous studies in recent years have focused attention on
particular aspects of patent infringement litigation in the United States....
No one, however, seems to have analyzed the results in terms of who ultimately “wins”
patent litigations, meaning a judgment in favor of a particular party at the
Federal Circuit Court of Appeals, for the full population of contested
judgments. We undertook to fill that void by analyzing the dispositive
decisions of that court over the three-year period from 2002 to 2004. By “dispositive”
we mean a case in which, as it leaves the Federal Circuit, at least one claim
of one patent is finally adjudicated to have been infringed and not invalid or
unenforceable (i.e., a win for the patent owner), or in which it has been
finally determined that no claim has these characteristics (a win for the
accused infringer). We included all dispositive decisions of the Federal
Circuit, whether by precedential opinion, non-precedential opinion, or per curiam affirmance without opinion
under the court’s Rule 36. There were 262 such cases.

Below is a sample of their results, which reports how often
each judge voted for the patentee. (Note: In reproducing this table, I
moved Judge Lourie up two rows to maintain the descending order in the fourth
column.) The Federal Circuit randomly assigns judges to panels.

I know this is an academic blog (as opposed to a “mixed”
blog). Thus, we generally don’t discuss politics. But several weeks ago, I was party to some
lively dinner conversation that raised an interesting issue of the limitations
of empirical research for political consulting. So, despite the political context, this is a serious—very
“serious”—blog post, assuming there is such a thing. Further, it is probably right in the wheelhouse of some political
scientists out there who specialize in voting and election strategy.

Here is my question: Is it possible that the constructs of leadership or sincerity, which cannot be easily measured, are part of the error term in the voting
models used by political consultants? In
other words, does the conventional political wisdom rest upon a series of mis-specified
regressions? The context of my dinner
conversation might throw this issue into sharper relief.

My companions included an economist, a historian, and two
political scientists.

“The Influence of Jurisprudential Considerations on Supreme Court Decision Making: A Study of Conflict Cases,” Law and Society Review, 40(1):135-162 (with David Klein).

"Comparing Attitudinal and Strategic Accounts of Dissenting Behavior on the United States Courts of Appeals." 2004. American Journal of Political Science 48(1):123-137 (with Virginia Hettinger and Wendy Martinek).

"Separate Opinion Writing on the United States Courts of Appeals," 2003. American Politics Research, 31(3):215-250 (with Virginia Hettinger and Wendy Martinek).

19 May 2006

Over at Conglomerate, Gordon Smith posted an excerpt from a new ranking system of American law reviews by Ronen Perry of the University of Haifa (Israel). The excerpt includes a summary table of the Top 25 journals. Perry's system looks at overall citations of articles published and citations per page and thereafter normalizes to a 100 point scale for ranking purposes. According to Perry, "The linear correlation coefficient between the school's ranking and its flagship law review's ranking is 0.8334."

No surprise there. Many law professors use U.S. News rankings as a guide during the submission and expedite process. One reason why the correlation is not higher is that a handful of articles at non-elite journals probably garnered a large number of citations (i.e., they were especially good, novel, or bad in a truly noteworthy way). Presumably, this effect is random. But there is no sound theoretical reason to believe that any alternative ranking of law reviews (whose staffs turn over every year) is going to be valid prospectively.

18 May 2006

We take advantage of the variation in the judicial selection system - some judges are appointed, while others are elected - to address how the racial composition of a district affects sentencing. We find that appointed and elected judges act differently, suggesting that bias in the way that the laws are written cannot explain the entire difference in sentencing between blacks and whites. We find that blacks are more likely to be incarcerated, and receive longer sentences, but this effect diminishes as the percentage of the population that is black rises for a black defendant facing an elected judge. A one standard deviation increase in blacks' share of county population is enough to obliterate the difference in sentence length.

The enclosed Article is the first comprehensive synthesis of two
decades of empirical research on medical malpractice settlement. The
portrait that emerges from this synthesis is both more reassuring and
more complex than popular portrayals. Although the fit is not perfect,
the merits generally drive the settlement process. Weak claims
consistently fare the worst, toss-ups cases do better, and strong cases
have the most success.

I recently stumbled across yet another paper setting out to empirically assess whether attorneys generate independent value for their clients. Put slightly differently--and in the words of the author, Erica Hashimoto (Georgia), the paper tests the long-held assumption that "there is no good reason for a [criminal] defendant to choose self-representation, and those who make that choice are either mentally ill or foolish." Hashimoto's findings run against conventional wisdom.

Although in terms of research design and execution this paper is perhaps not as methodologically sophisticated as the Lederman tax court paper, Hashimoto's largely descriptive account is interesting and contributes to a foundation for future work. (Orin Kerr provides additional commentary on the Hashimoto paper here.)

17 May 2006

Though scholars have found that modern justices are frequently motivated to step down by political circumstances, we believe that their long-departed predecessors rarely had such a luxury. Specifically, we suggest that the focus on political factors often present in this literature is inappropriate in the period prior to the Judiciary Act of 1869 (16 Stat. 44). The absence of pensions and the rigors of circuit duty prevented early justices from reacting to political stimuli in the same manner as recent justices. In support of this proposition, we examine the effects of personal, institutional, and political factors on Supreme Court turnover, positing that departure behavior prior to the advent of judicial pensions was driven primarily by justices' personal and institutional, rather than political, circumstances.

This paper applies a simple economic framework to the choice between pleading and summary judgment as points at which a claim can be dismissed. It concludes generally that pleading standards should vary with the evidentiary demands of the associated legal standards and the social costs of litigation. The common law's imposition of higher pleading standards for fraud claims is consistent with this proposition. The theory implies that the rigorous summary judgment standards that have been developed by antitrust courts should lead to a correspondingly rigorous assessment at the pleading stage.

Both the existence and content of this blog show that empirical legal studies has made extraordinary progress in recent years in the field of applying empirical analysis to the effects of the law. However, the progress of empirical legal studies in analyzing legal institutions themselves -- courts, judges, and cases -- is more haphazard.

The central limitation is that the primary test of judicial ideology is inadequate. The traditional approach is to count the number of case outcomes categorized as liberal and contrast them to the number of cases labeled conservative. But case facts and the questions of law they present are not dichotomous; they represent the full breadth of legal inquiry. One case that is labeled liberal may be far more liberal than another case with the same label. Michael Bailey and Kelly Chang equated this mode of analysis to giving students a calculus exam and an addition quiz, and treating a score of 80% on each as equivalent.